In the Interest of F.B., J.B., and K.B., Minor Children, D.E., Father ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0236
Filed April 5, 2017
IN THE INTEREST OF F.B., J.B., and K.B.,
Minor Children,
D.E., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A father appeals from the order adjudicating his child to be a child in need
of assistance. AFFIRMED.
Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant
father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Michael J. Bandstra of Bandstra Law Office, Des Moines, for minor
children.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
2
DANILSON, Chief Judge.
The father appeals from the juvenile court’s findings as related to the
children being adjudicated as children in need of assistance (CINA) pursuant to
Iowa Code section 232.2(6)(b) (2016), that is, “[w]hose parent, guardian, other
custodian, or other member of the household in which the child resides has
physically abused or neglected the child, or is imminently likely to abuse or
neglect the child.” He does not challenge the findings the children are CINA
under section 232.2(6)(c)(2) (failure to properly supervise), (6)(e) (failure to
provide needed medical treatment), and (6)(n) (parent’s mental capacity results
in child not receiving adequate care). The court adjudicated the children in need
of assistance on all four grounds but did dismiss the allegation that the children
were CINA pursuant to section 232.2(6)(d) (sexual abuse).
The State must prove the CINA ground alleged by clear and convincing
evidence. Iowa Code § 232.96(2). We review CINA proceedings de novo. In re
J.S., 846 N.W.2d 36, 40 (Iowa 2014). We give weight to the juvenile court’s
findings of fact but are not bound by them. Id.
Upon a full review of the record, we find no reason to disturb the juvenile
court’s findings that the children are in need of assistance under section
232.2(6)(b). See id. at 41 (discussing section 232.2(6)(b)).
On October 20, 2016, four children were temporarily removed from the
care of the Daniel and Tiffney. Daniel is the father of three of the children: F.B.,
born August 2012; J.B., born July 2014;1 and K.B, born February 2016. After an
uncontested hearing on October 27, the emergency removal was confirmed and
1
F.B. and J.B. are Daniel’s biological children by a different mother.
3
continued due to the parents’ “failure to meet children’s basic medical needs;
failure to provide appropriate nutrition of children; failure to properly supervise
children; possible sexual abuse for [F.B.];” the custodial parents “allowing
inappropriate persons around children; unresolved substance abuse issues” of
custodial mother; and the “children’s unsafe living environment.” In the removal
order, the juvenile court noted that upon the department of human services
(DHS) direction following a report of possible abuse:
[Tiffney] took [J.B.] and [F.B.] to the hospital as directed. The
photographic evidence clearly depicts the numerous, unexplained
injuries, and serious injuries to these two children. [F.B.]’s rash
covered the entire area her diaper would have covered. It was red,
blistering and bleeding. According to testimony it would have been
painful to her and was so bad the treating medical staff was unable
to determine if it was simply one of the wors[t] cases of diaper rash
the doctor had ever seen or due to some type of virus such as
herpes. [J.B.]’s sores on his hips were almost to the bone and it
was the doctor’s opinion that the parent’s explanation of a reaction
to duct tape (apparently used to hold on his diapers) was not
plausible. [J.B.] had bruising all over his body, including on his
head, ears, and legs. The substance observed on the child’s feet
the day before was still on his feet and was confirmed to be feces.
Further, both [F.B.] and [J.B.] were significantly underweight and
medical staff reported that when [J.B.] was seen at the hospital he
consumed copious amounts of food and drink and was obviously
hungry. The medical staff also noted he was emotionally withdrawn
and did not speak or smile when staff attempted to engage with
him. Neither he nor [F.B.] had been seen for regular checkups or
immunizations which the parents claimed to financial reasons but
notably, both [I.H.] and [K.B.] have been regularly seen by doctors.
The evidence seems to indicate [F.B.] and [J.B.] were targeted for
abuse and neglect.
4
As noted in the CINA adjudication order, an “uncontested” adjudication
hearing was held on November 18, 2016,2 after which the juvenile court made
these specific written findings, which we adopt:
The Court makes the following specific findings of fact: The
evidence shows that . . . [J.B.] had significant bruising all over his
body, including legs, face, head, and torso. The parents offered
multiple explanations for, including him being in a car accident, him
being abused by his older sibling, and the child being an “active”
child. The Court finds the amount of bruising and changing
explanations, coupled with the other circumstances, convinces the
Court [J.B.]’s injuries were non-accidental and inflicted upon him by
. . . his parents who were his sole caretakers.
The court also stated on the record that it found sufficient evidence that Daniel
and Tiffney “neglected the children in their care and physically abused the
children in their care.” These findings are supported by the medical records and
photos in the record. We thus affirm the CINA adjudication pursuant to section
232.2(6)(b), finding the children were persons “[w]hose parent, guardian, other
custodian, or other member of the household in which the child resides has
physically abused or neglected the child, or is imminently likely to abuse or
neglect the child.”3
Daniel also argues on appeal that he did not engage in domestic violence
with the mother of F.B. and J.B. and now objects to being required to engage in
domestic-abuse services. This requirement was imposed because the mother of
2
Daniel officially “took no position” regarding the adjudication. At the disposition
hearing, he agreed “his children should be confirmed as adjudicated as previously
found.”
3
Moreover, we observe that at the dispositional hearing, Daniel’s counsel made the
following statement:
I will note for the record that because the father has now tentatively
resolved his criminal charges, this is the first time the father has been
able or has chosen to take a position, and he is in agreement, agrees that
his children should be confirmed as adjudicated as previously found.
5
F.B. and J.B., Daniel’s former wife, reported to a child protective worker that
when she and Daniel lived together there was ongoing, “extreme domestic
violence,” which she confirmed with the court at the adjudication hearing. At the
hearing, Daniel’s counsel stated: “[Daniel’s] position is that domestic violence did
not occur. But he’s willing to accept whatever services the Department or the
Court requests him to do including therapy including whatever is necessary.”
Consequently, we conclude Daniel has not preserved for appeal a challenge to
the juvenile court’s order that he participate in “services directly targeted for
domestic violence issues.” See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012)
(“[T]he general rule that appellate arguments must first be raised in the trial court
applies to CINA and termination of parental rights cases.”).4
AFFIRMED.
4
There was no formal finding that Daniel committed domestic abuse and no such a
finding was required. Terms and conditions imposed upon parents by the court are
intended to assure the protection of the child or children. Iowa Code § 232.106.